Wills — Attested Wills

Question 1

Notarized Wills

Answer 1

A will can be valid if it is notarized or acknowledged by another individual authorized by law to take acknowledgments. (This only applies in CO and ND.)

Question 2

3 Formalities for making attested wills

Answer 2

1. Writing–Etching on paper, No oral wills, No electronic wills in CA nor electronic signature.
2. Signature; and
3. Attestation

Question 3

ATTESTED WILLS REQUIREMENTS

Answer 3

A. The will must be:

 1. In writing; 

 2. Signed by the testator in the testator's name OR by another individual in the testator's conscious presence and by the testator's direction.; AND

 3. EITHER:
       a. signed by at least two witnesses, each witness must have signed within a reasonable time after having seen the testator sign or acknowledge the will; OR 
       b. acknowledged by the testator before a notary public or other authorized individual.

CA DIFFERENCES:
—CA requires witnesses to be present at the same time AND in CA the witness must understand that the instrument is the testator’s will.
—CA cares about interested witnesses.

Question 4

HOLOGRAPHIC WILL REQUIREMENTS

Answer 4

if the signature and material portions are in the testator’s handwriting.

These are valid in more than half of the states, INCLUDING CA.

Requirements:
1. The material provisions are written by the testator and:
2. The will is signed by the testator. [no attestation needed.]

Note: Material provisions == beneficiaries, gifts, etc. [may use extrinsic evidence to establish testator’s intent.]

Standard of proof is a preponderance of evidence.

Question 5

Will created by extrinsic evidence requirements

Answer 5

Can look at extrinsic evidence to analyze the intent of a testator’s will.

Question 6

Interested Witnesses

Answer 6

Interested witnesses are witnesses that are beneficiaries of the will.

In CA, interested witnesses create a presumption of undue influence, duress or fraud. This presumption, however, does not apply if there are at least TWO disinterested witnesses.

If the presumption is not rebutted, the interested witness does not receive his portion of the devise (aka will).

UPC does not care about interested witnesses.

Question 7

In re Groffman

Answer 7

Will was not valid because the testator did not make or acknowledge his signature in the presence of both witnesses AT THE SAME TIME.

Question 8

The Substantial Compliance Doctrine

Answer 8

The Substantial Compliance Doctrine

If there is a defect with the will, do not automatically assume its invalid, look to see whether: 
 1. Does the document express the decedent's testamentary intent; and; 
 2. Does the will serve the purposes [functions] of the Wills act:  

Only applicable under some jxs.

Question to ask, is “What went wrong?”

Question 9

What are the function of the Wills Act

Answer 9

1. Channeling
2. Evidentiary
   = Provide court with reliable evidence of testamentary intent
3. Protective
   = Protects testator against imposition at the time of execution
4. Cautionary / Ritual
   = Caution the testator and impress with her the seriousness of the testament and assure the court that the statements of the transferor were deliberately intended to effectuate a transfer.
5. Administrative

Question 10

What are the function of the Wills Act

Answer 10

1. Channeling / Adminstrative
   = makes it easier for judges to decipher wills if we are doing them in certain ways - not left guessing whether something in fact a will.
2. Evidentiary
   = Provide court with reliable evidence of testamentary intent
3. Protective
   = Protects testator against imposition at the time of execution
4. Cautionary / Ritual
   = Caution the testator and impress with her the seriousness of the testament and assure the court that the statements of the transferor were deliberately intended to effectuate a transfer.

Question 11

Harmless Error Rule

Answer 11

This is a curative doctrine under the UPC and CA.

If document fails to comply with 2-502, the document can still be valid if it can be established by CLEAR AND CONVINCING EVIDENCE that the decedent intended the document or writing to constitute:

  1. the decedent's will;  
  2. a partial or complete revocation of the will; 
  3. an addition to or an alteration of the will, or;
  4. a partial or complete revival of the decedent's formerly revoked will or of a formerly revoked portion of the will. 

NOTE: the harmless error rule in CA applies ONLY FOR attestation errors.

Question 12

Notarized Wills

Answer 12

A will can be valid if it is notarized or acknowledged by another individual authorized by law to take acknowledgments. (This only applies in CO and ND.)